When Parliament resumes next week, the EU (Withdrawal) Bill will be entering its Committee stage in the House of Commons. Whilst a variety of issues were raised during the Second Reading debates, the treatment of the EU Charter of Fundamental Rights caused particular concern. The purpose of this post is to clarify the status granted by the Bill to the human rights protected by the Charter after exit day, and to consider how the human rights protected by the Charter might continue to enjoy effective protection when retained EU law is converted into domestic law.

The confusion of clauses 5(4) and 5(5) – exchanging the Charter for “underlying rights”

Clauses 2, 3 and 4 of the Bill provide for the retention of existing EU law. Exceptions are set out in clause 5. Whilst clause 5(2) provides that the principle of the supremacy of EU law continues to apply on or after exit day in relation to retained EU law, clause 5(4) provides that the “Charter of Fundamental Rights is not part of domestic law on or after exit day.”

At first glance it might be assumed that the human rights protected by the Charter cannot therefore be called in aid by a domestic court to interpret retained EU law. However, clause 5(5) contradicts clause 5(4). Clause 5(5) provides that clause 5(4) does not “affect the retention in domestic law on or after exit day . . . of any fundamental rights or principles which exist irrespective of the Charter” and “references to the Charter in any case law are, so far as necessary for this purpose, to be read as if they were references to any corresponding retained fundamental rights or principles”. In essence, whilst a domestic court interpreting retained EU law will not be able to employ the Charter, it will be able to utilise “fundamental rights and principles which exist irrespective of the Charter”.

Such an interpretation is supported by various explanatory documents and the statements of David Davis to Parliament. This new set of “underlying rights”, as described in the Great Repeal Bill White Paper, is undefined and will allow domestic courts to interpret retained EU law in imaginative and progressive directions taking into account the UK’s numerous commitments in international human rights law. Whilst Schedule 1(3) to the Bill provides that there is no right of action in domestic law on or after exit day “based on a failure to comply with any of the general principles of EU law” it is not clear if this applies to retained EU law and if it is also intended to override clause 5(5).

But why?

But, as many have asked in Parliament, given in substance there is no real change when clauses 5(4) and 5(5) are considered together, why not just keep the Charter? The real reason is very likely to be political. In March 2017 when Davis announced that the Charter would not be included in the EU law to be retained, The Daily Telegraph reported as follows: “Britain to ditch EU charter of rights that helps foreign criminals stay as Davis vows to take back control”. In the same article it was also reported that Sir Bill Cash MP said Britain would immediately benefit when the Charter of Fundamental Rights was dropped because “it provides protection for people who have no right to be protected”.

A high profile “ditching” of the Charter is a significant political victory even if in reality its guarantees have not been ditched at all and the vagueness of clause 5(5) means that even more expansive judicial protection of human rights is entirely possible in relation to retained EU law.

Variable human rights protection

According to the Bill, after exit day there will be two categories of domestic law: retained EU law; and law not connected to the EU (non-retained EU law). Retained EU law will be interpreted by domestic courts utilising the “underlying rights”, common law, and the Human Rights Act 1998 (HRA). Non-retained EU law will be interpreted by domestic courts as it has been since October 2000 when the HRA came into force – utilising common law and the HRA. Therefore, for the moment, various sources of human rights protection, such as that employed by the UK Supreme Court in its Unison judgment [2017] UKSC 51, will continue. Here the Supreme Court unanimously concluded that fees imposed by the Lord Chancellor in respect of proceedings in employment tribunals were unlawful because of the impact on access to justice. The fees order was found unlawful at common law, under EU law (Article 47 of the Charter), and exactly the same result could have been reached under the HRA (Article 6 of the ECHR).

But it is not the Government’s intention to keep retained EU law on the statute book forever. It has already announced a number of bills to replace EU law including an Agriculture Bill and an Immigration Bill. The obligation to interpret retained EU law compatibly with the “underlying rights” will only last for as long as it takes for retained EU law to be amended, replaced or repealed by the UK Parliament. And, as many have also noted during the parliamentary debates, changes to retained EU law need not take place via primary legislation.

In short, whilst retained EU law will be subject to interpretation, disapplication, and possibly quashing utilising the underlying rights, “converted” retained EU law will only be subject to challenge utilising the HRA and the common law (unless the opaque clause 5(3) applies and the intention of the modification is to retain the supremacy of EU law). Whilst the inclusion of the substance but not the form of the Charter in the Bill is very odd, the real diminution in human rights protection actually lies further down the track when retained EU law is converted into domestic law.

Implications arising from the loss of the “underlying rights”

For current levels of human rights protection to be maintained, it must be possible to challenge converted retained EU law in UK courts in the same way that it would be possible were this law retained EU law (as defined in the Bill) or if the UK were still a member of the EU. The Bill, as currently drafted, does not allow for this. In the following paragraphs the three main categories of human rights claim that will be possible in relation to converted retained EU law are examined to illustrate the reduction in human rights protection that will take place when retained EU law is converted into domestic law.

Converted retained EU law which has the status of secondary legislation and which is incompatible with a human right protected at common law, in the Charter and by the HRA (ECHR).

This was the position in the Unison [2017] UKSC 51 judgment of the Supreme Court noted above. Here the loss of the Charter, and the underlying rights, as a tool of interpretation will not matter as the same result can be achieved via the HRA or the common law. However, it is important to note that clause 19 of Schedule 8 to the Bill provides that for the purposes of the HRA, any retained direct EU legislation is to be treated as primary legislation and not subordinate or secondary legislation.

Converted retained EU law which has the status of primary legislation and which is incompatible with a human right protected at common law, in the Charter and by the HRA (ECHR).

Whilst the position in this instance is similar to that above, there is a difference in the remedy that can be afforded by a court should it find an incompatibility. Loss of the Charter, the underlying rights, and the principle of the supremacy of EU law will mean that a court can only afford a HRA remedy which will be a section 4 declaration of incompatibility rather than a disapplication of the primary legislation.

This was the position in Benkharbouche [2015] EWCA Civ 33 where the Court of Appeal determined that sections of the State Immunity Act 1978 which prevented the employment claims of embassy staff from being brought in UK courts were incompatible with Article 6 ECHR (HRA) and Article 47 of the Charter. As the claims fell within the scope of EU law, it was possible for the court to disapply these sections as well as issue a declaration of incompatibility under the HRA. Other examples include Vidal-Hall v Google Inc [2015] EWCA Civ 311 and Davis and Watson [2015] EWCA Civ 1185.

Converted retained EU law which has the status of secondary legislation or primary legislation and which is incompatible with a human right protected by the Charter but not the HRA (ECHR) or a right currently recognised at common law.

As already noted, the Charter (and underlying rights) offer protection to a far wider set of human rights than that protected by the HRA and currently by the common law. For example, the right to an effective remedy for the violation of human rights is protected in Article 47 of the Charter but Article 13 of the ECHR is not included in the Convention rights given further effect by the HRA. This type of claim will no longer be possible in relation to converted retained EU law. There are a number of recent examples.

In David Davis and Tom Watson’s challenge to the Data Retention and Investigatory Powers Act 2014 [2015] EWCA Civ 1185 the Court of Appeal agreed with the Divisional Court that Article 8 of the Charter was more specific than Article 8 ECHR. In BAT Industries [2017] UKFTT 558 (TC) the First Tier Tribunal held that the HRA (Article 6 of the ECHR) did not apply to the facts of a tax dispute but Article 47 of the Charter did because it was broader and was not limited to the “determination of civil rights and obligations”. Similarly in AZ [2017] EWCA Civ 35 the Court of Appeal confirmed that unlike Article 6 of the ECHR, Article 47 of the Charter applied to immigration decisions.

In Plant Force (Leeds) Ltd [2017] UKFTT 349 (TC) the First Tier Tribunal utilised Article 50 of the Charter and Article 4 of Protocol 7 ECHR (not a part of UK law) which establish that a person is not to be punished twice for the same cause (no double jeopardy). In British American Tobacco [2016] EWCA Civ 1182 the Court of Appeal held that unlike Article 1 Protocol 1 ECHR, Article 17 of the Charter provided for an absolute right to compensation in the case of a deprivation of property. In Hassan [2016] UKUT 452 (IAC) the Upper Tribunal held that Article 18 of the Charter, which guarantees a right to asylum, would be breached if an individual was removed from the UK to a state where there was a real risk that a breach of Article 18 would occur. And in N (Children) [2016] UKSC 15 the Supreme Court utilised Article 24 of the Charter to conclude that the best interests of the child were a primary consideration when determining whether care proceedings should be transferred from a UK court to a court in Hungary.

How to retain the same level of human rights protection for converted retained EU law

To retain the same level of protection once retained EU law is converted into UK law there are a number of options. One is to add a new clause to the Bill which provides that amendments or modifications to retained EU law must be compatible with fundamental rights as set out in the Charter. But this would leave unclear how a court is to deal with primary legislation incompatible with the Charter. A more detailed clause could follow the HRA model and provide that amendments to retained EU law must be “read and given effect in a way which is compatible with the rights set out in the EU Charter”. Where this is not possible, a court could have the power to disapply the law (assuming it is primary legislation) or issue a section 4 HRA style declaration of incompatibility.

But in order to ensure that the breadth of rights and remedies is retained, the most simple and effective solution would be to amend the Human Rights Act 1998. The rights protected by the Charter could be added to the rights given further effect by the HRA and courts could also be granted the power to disapply primary legislation which is incompatible with the rights protected. Whilst these new features of the HRA could be limited so as to only apply to converted retained EU law, the complications created would be enormous and it would be far simpler to simply make these new remedies available in relation to all types of law.

Conclusion

The complexity of the Bill makes it difficult to see how it is designed to facilitate a reduction in the human rights protection currently enjoyed by the people of the UK. But this is very clearly one purpose of the Bill and the common law and HRA simply cannot fill the gap. It is not possible for courts to disapply primary legislation utilising the HRA or the common law, and the lexicon of human rights afforded protection by both is very limited and dated, particularly when compared to the Charter. For many years there has been a reluctance amongst supporters of human rights law to consider any changes to the HRA for fear that the opportunity will be used to weaken its protections. But this is an extraordinary moment and the time has come to examine afresh how national human rights law might be changed to respond to the vacuum in protection about to open up.